During the 1989 round-table talks preparing for the politico-legal transition, political forces, which today play an influential role in Parliament, agreed upon the framework for a constitutional democracy and have consequently succeeded in its implementation. This framework provides accepted processes through which political and social conflicts may be resolved within the range of law. At any time, when seeking solution to societal crises while keeping the future in mind, partners in crisis have to take the above as a starting point.
1
Civil disobedience is originally an English term, which I consider to be political rather than legal in nature. Examples characteristic of civil disobedience include Mahatma Gandhi's passive resistance movement in India, the American burning of draft cards in the '60s during the Vietnam War, demonstrations against nuclear threat, and protests against environmentally harmful projects. Social movements like these serve common moral and basic interests, and not simply and merely the aspirations of individuals. Participants in these protests can be characterized as possessing great self-discipline and a firm guiding belief in non-violence. They are consistent in challenging or provoking the prevailing order and are willing to bear the legal consequences of their actions. Their reasoning holds that, for instance, "I protest because my conscience compels me to, and the authority's task is to treat me in accordance with the law. But they have to know that if they arrest me, tens and hundreds, maybe tens of thousands will stand up in line behind me."
That is to say that authorities have to act in order to preserve law and order, but in doing so they may be bound to initiate processes that may subsequently undermine their authority. And if law-enforcement agencies fail, belief in their authority will be diminished, too.
* First published as parts of [with Péter Hack, Gábor Jobbágyi, Zoltán Rockenbauer & Emil Tallós) 'Nem állampolgári engedetlenség; Közkegyelmi törvény kell' [Not a case of civil disobedience; A general bill of pardon is requested}: A Reggeli Pesti Hírlap nyilvános vitaülése [Enyedi Nagy Mihály vitavezetésével] a fuvarosblokád jogi megítéléséről [a public debate conducted by Mihály Enyedi Nagy on the legal qualification of the taxi drivers' blockade], I-II Reggeli Pesti Hírlap, I (12 & 13 November 1990) 179 & 180, pp. 8 & 8.
2
That what occurred in Hungary during the long weekend starting by the night of 25 October 1990, displayed a rather different logic actually. The mass media covered the events freeze-frame, starting on Friday morning when the first timid policeman approached the cars comprising the blockade in order to write down licence plate numbers. The media then showed his mission rendered impossible and even his notepad tossed into the Danube.
The same morning also the dismissal of the Minister of the Interior was demanded by charging him that, allegedly, by his referring to regulations in law, he threatened cab drivers to use force.
In fact, civil disobedience is not simply citizens' participation. It is a social process in which the events are limited to the civil sphere and the fight for citizens' rights. In consequence, the events in question must not conflict with the law in a way diminishing or violating the rights of others.
In plain terms, the relationship between the protester and the state authority is one that conceptually precludes the use of force, including, in our case, the construction of blockades as well.
3
One can state that instances of civil disobedience, taken in its classic meaning, are extremely rare over the one-thousand-year history of Hungary. And one has to remember that division of labour as such is most meaningful in crisis situations. Accordingly, politicians have to do their job and the members of the legal profession to do theirs, but the two must not be mixed. Now there is a crisis in fact because of the political stand that was made to prevail in the legal assessment of the blockade. Providing that there are legal experts in the country, they have to do their job and they have to elevate themselves, today as well as tomorrow, to a professional standing for putting things in order, at least up to the point of the proper qualification of events. All of us have to know what to expect and do now and in the future. And in order to prepare for the future, we have to find immediately the legal (or quasi-legal) forms of managing political crisis, by avoiding the pattern offered by Weimar in Germany in the '20s.
Of course, law cannot suppress any social phenomenon. At the same time, constitutional democracies are not subject to the ruthless and unrestricted hand of mere facts. In a constitutional democracy, problems arise mostly at times when laws become irrelevant, when the rationality secured by the law is lost. For instance, paradoxically speaking, everyone has the right to commit a crime, but not the right to say that what h e does is not criminal.
Consequently, I may not state that as long as such a crisis may arise, it is solely the state authority that is held to be responsible. Though law provides
a framework for any situation, its effect is mainly exerted through foretelling consequences. In our case, crimes were committed. Providing that it is in the interest of society not to punish these crimes, pardon shall be offered to them in a legally acceptable form. But notwithstanding the issue, damages have to be compensated. (For instance, international insurance companies will probably pay for goods trapped or spoiled in trucks, but will afterwards tum to Hungary for reimbursement.) That is, the legal consequences of all these events have to be thoroughly considered. And we have to be conscious of the established order according to which the qualification of events can only be changed by legislatory amendment or by the introduction of a new, revolutionary order. If we claim remaining within the framework of the existing law and order while at the same time accepting such a contradiction, then tomorrow any small grouping may venture to blocking the roads leading out from and connecting towns and, what's more, can even expect and reclaim freedom from prosecution.
4
Today it is our job to lay down the foundations of a common future. That is why it is so important to state that citizens from birth are entitled to exert the ius resistendi (i.e., the right to resist) against a tyrant only. But the cab drivers' demonstration was completely different even if the blockaders' rhetoric made occasional reference to it. In fact, no force asserting itself in the conflict ever demanded the overthrow of an oppressive regime. The country was totally blockaded notwithstanding the fact that the blockade is a serious step of a grave situation in which, according to the Constitution, the President of the Republic should have announced a state of emergency, convened the National Defence Council and, simultaneously, mobilized the army.
Memory of The Golden Bull (i.e., the Magna Carta of Hungary from 1222) may justify the claim by tradition that the right to resist will once upon the time be integrated into the formal system of the law of the Republic of Hungary, albeit it is not yet the case.
5
No matter what is going to happen in these days, the preservation of the law and order has to be guaranteed first of all by exactly those political parties that have established the constitutional set-up itself. For no political party is entitled to escalate a situation in which crime-like behaviours play a determining role. On that dramatic Friday night, the public television's news program raised the question to the leading representatives of the so-called liberal opposition in parliament, a historian and a jurist, whether they are
disturbed by the fact that the country is blockaded, and millions of citizens are deprived of their freedom of movement? Interestingly, in spite of explicit constitutional obligations, none of them distanced themselves and their own parties from the employment of criminal tactics. And at the end of the crisis, though all the parliamentary parties made clear in their statements that they had distanced themselves from the illegality of recent events, they avoided referring to the future. This is why to have a final answer requires all the parties to unequivocally renounce the use of criminal tactics in their daily management and actual settlement of all kinds of social and political conflicts.